Report of the Working Group: deliberations

Meeting report

AFRICAN UNION WORKING GROUP
18 March 2002
REPORT OF THE WORKING GROUP: DELIBERATIONS

Chairperson: Dr F Ginwala
Deputy Chairperson: Ms Baleka Mbete

Documents handed out:
Third Report of the Working Group on the African Union (See Appendix)
Draft Summary Report on AU Seminar
[Final Seminar Report is being awaited]

SUMMARY
The purpose of the meeting was to consider Third Report of the Working Group on the African Union and agree on what would be tabled at the National Assembly.

MINUTES
The Deputy Chairperson advised the group not to have regard to the workshop report as it is urgent that the Committee tables a report which will focus on the way ahead for this group. That report's accuracy would be considered at the next meeting.

Dr Geldenhuys (NNP) said that the only objection to the report was contained in paragraph three and it seems to have been amended. And that it seems to have been amended.

Paragraph 2: Legal Considerations (a) Introduction
The Chairperson referred to the above paragraph and suggested that line 2 of the third bullet be amended to read " South Africa may need to consider amending the Constitutive Act to accommodate its obligations under the Constitution".

Ms Chohan (ANC) pointed out that in the second bullet, the second sentence should be a separate point as it does not flow from the first sentence. The first sentence deals with harmonising domestic and international law.

The Chairperson said the sentence should read "To facilitate democratic considerations, it is suggested that checks and balances be built into the Constitutive Act…."

Ms Chohan said that the sentence in the third bullet reading "South Africa also needs to examine whether the Constitutive Act of the AU is in harmony with international law and practice..." should be a separate point and have a bullet inserted before the start of the sentence. She suggested that the bullets be re-arranged to create more coherency.

The Chairperson referred to the above sentence and suggested that the word "whether" be deleted and substituted with "the extent to which".

Mr Surty (ANC) suggested that the words "for example" and "contradiction" be deleted and substituted with the word "vagueness".

The Chairperson replied that this sentence did not contain the entirety of the contradictions, as the same words are applied elsewhere. She suggested that if the words are removed it suggests that this is the only clause in which it appears, and this is incorrect. She mentioned the words "for example" could be substituted with "e.g."

Ms Chohan said that she was not sure that what followed in the last bullet in that sentence is coherent. She thought that this sentence pointed out the jurisdiction of the courts.

The Chairperson said that this related to the debate on class action, and who has locus standi in the international courts. She said that the jurisdiction in line 1 is between the states, whereas the rest of the paragraph refers to the debate on whether the jurisdiction is between states or whether it recognises individual action.

Ms Chohan said if that is the case then much of that sentence needs to be deleted. She suggested that the entire paragraph should be deleted.

Ms Chohan suggested that the bullets that precede the substantive point are meant as an introduction. It seems that perhaps it should be stated in this paragraph that there is uncertainty as to whether jurisdiction extends to individuals or states.

Paragraph 3 (d) General
Ms Hajaij (ANC) referred to the above paragraph and suggested that the word "economic" be inserted between "sub-regional bodies".

Paragraph 1 (b) Political Environment
A Member referred to this paragraph and suggested that the word "approach" be substituted for "principle", so that the sentence could be more positively worded.
He also referred to the workshop report and said that there are recommendations stated therein which should be included in this report.

The Chairperson said that in the workshop report there are a number of recommendations that have been made. However, this group could only perform those to the extent to which they are mandated by the National Assembly, which is why they needed to discuss what it is to be tabled before the National Assembly.

The Deputy Chairperson said that there were issues relating to the Protocol on the Pan African Parliament, the role of the parliamentary SADC forum and the role of the Working Group. There were specific suggestions for example of an ad hoc committee which will assign task teams

Mr Surty suggested that the ad hoc committee be established and give regard to the recommendations of the working group.

According to the Chairperson the commissions recommended that the Working Group should continue. One of the commissions contradicted that and recommended the establishment of the ad hoc committee. This report however does not include the recommendation of the workshop. She said that there are a number of recommendations which have come out of the workshop but which cannot be regarded as the recommendations of this group. The report of the workshop is not being tabled at the National Assembly, this working group's report is.

The Deputy Chairperson suggested the inclusion in the third report of certain recommendations like tabling the Protocol, SADC Parliamentary forum and the ad hoc committee issue.

Ms Chohan said she required clarity on the ad hoc committee issue. She suggested that perhaps broader language be used.

Mr Surty said that a decision on the establishment on the ad hoc committee should not be made, and that the task should be left to be expanded on at a later stage. The group should not commit itself to the establishment of an ad hoc committee at this junction.

He suggested that a time frame for the ratification of the Protocol be included. Perhaps Parliament should endeavor to bind itself by a particular date.

On the recommendations on how to take the work forward, Members agreed that the working group should be authorised to continue examining the different issues raised at the workshops. It should be reported that the presiding officers be authorised to expand the membership of the working group when the need for task teams, for example, arises.

On the recommendation that the Constitutive Act gives a major role to the Pan African Parliament, the Chairperson said that as yet such a Parliament will not be in existence when the African Union meets. Therefore a Presiding Officer will not be in place, hence the Presiding Officer should be a participating member. She said she would like to recommend the engagement of the Executive to see what role the Parliaments of Africa can play in association with the summit (WSSD) to take pace in South Africa. There is the need to express the view that the African Parliaments be associated with this summit.

Mr Surty suggested that the group should engage with the Executive and locate the definitive role of Parliament, in order to establish a PA Parliament.

Ms Hajaij said that she agreed with that submission.

Ms Chohan said that she agreed but it needs to be contextualised a bit more in the report. One of the themes of the AU is that the voices of different people on the African continent be heard and that this is done through their representatives, the people of the African continent.

Paragraph 2 (d) The Use of Force in International Intervention
Ms Hajaij suggested that next to the second bullet, the words "current international law" be inserted after the word "contradict".

Paragraph 2
The Chairperson referred to the legal considerations at the end of this paragraph and said that she was not sure what the fifth bullet, Gender, meant.

Mr Surty responded that paragraph 2 (f) Gender was perhaps what it was linked to.
He suggested that maybe it should read "gender sensitive language".

The report would be tabled on Wednesday.

The meeting was adjourned.

Appendix:
Third Report of the Working Group on the African Union
A. Introduction

The Working Group was established on 16 November 2001 by a House resolution to consider the implementation of the Constitutive Act of the African Union.

B. Objectives of the Working Group
The brief of the Working Group is to consider how to make Parliamentary inputs into the implementation of the Constitutive Act of the African Union and suggest appropriate procedural mechanisms for doing so. Parliament should assist the South African government in the implementation of the African Union and the establishment of its structures.

C. Meetings of the Working Group
The Working Group met on 15 January 2002, 14 February 2002, 27 February 2002 and 7 March 2002. The Working Group established a Planning Team to deal with detailed planning and technical matters. The Planning Team held its first meeting on 19 February 2002. The Working Group met with some members of the Inter-Ministerial Committee on the African Union on 28 February 2002 to discuss the African Union in general.

D. Seminar on the African Union
In cooperation with the Africa Institute of South Africa and the Institute for Global Dialogue a seminar on the African Union was held on 1 and 2 March 2002.
Members of Parliament as well as representatives from the Departments of Foreign Affairs and Trade and Industry attended the seminar. The objectives of the seminar were to:

Acquaint members with the African Union (AU).
Allow members to engage with the challenges posed by the implementation of the Constitutive Act.
Encourage members to begin thinking of the participation of Parliament in the process of shaping the evolution of the AU.
Discuss the possible role of South Africa in the implementation of the Constitutive Act.
Share knowledge and insight with the research institutes mentioned on the African Union.

E. Inputs of the Working Group
Following its previous reports to the National Assembly on 27 February 2002 and 12 March 2002, interaction with the members of the Inter-Ministerial Committee, deliberations during the above-mentioned meetings including the seminar on the African Union and the debate on the African Union on 12 March 2002 in the National Assembly, the Working Group wishes to make the following inputs regarding the implementation of the Constitutive Act of the African Union.

1. Political Considerations

It is necessary to give consideration to issues of political integration, sovereignty, a conducive political environment and human rights.

(a) Political Integration

According to the State Law Advisers' Office, the Constitutive Act of the AU does not seem to conflict and impact negatively on South Africa's Constitution.
There is an urgent need to bridge historical and language divisions in Africa and to harmonise the different approaches.
Political integration is a means through which African States are empowered to face the challenges of our time. This process could develop into a more formal structure in the future. The AU can be perceived as an evolving structure responding to the challenges of the day.
There appear to be no contradictions or ambiguity between Articles 4 (a), (g), and (h). There may however be a conflict between the functions and powers of the Assembly and the sovereignty of states. The issues of sovereignty are generally addressed unsatisfactorilly in the Act. The Working Group should explore this further.
Article 4(h) dealing with grounds for intervention by the Union in Member States' affairs should take into account Article 3 (h) in respect of reference to the promotion and protection of human rights.

(b)Political Environment

It may be necessary not to adopt an exclusionary principle. Rather, consideration must rather be given to what mechanisms can be adopted to pressurise and encourage states to create and maintain a political environment conducive to attaining the objectives of the AU.

(c) Human Rights

In respect of human rights, it may be necessary to consider that the Commission on Human and Peoples' Rights should become an organ of the AU.

2. Legal Considerations

(a) Introduction

The AU needs to focus its attention on legal inconsistencies, contradictions and assumptions in the Constitutive Act. The AU Constitutive Act contains socio-economic and integration issues that are open to different interpretations. This could impact on the sovereignty of States. The principles and objectives are seen as vague. The 'soft' legal drafting in Article 3(c), (l) and (n) compared to the definitive legal drafting in Article 9, for example creates some ambiguity and contradiction in the Act.
Questions such as whether countries are obliged to harmonise their laws with the AU in the event of AU laws being in contradiction with country-specific laws must be addressed It is suggested that checks and balances be built into the Constitutive Act, or, alternatively, that the current quorum for Assembly decisions be re-examined.
What are the constitutional implications for South Africa in signing the Constitutive Act? Would South Africa be willing to consider amendment to the Constitution should this arise as a consequence of ratifying the Constitutive Act?

South Africa also needs to examine whether the Constitutive Act of the AU is in harmony with international law and practice, particularly regarding human rights issues.
On the matter of the African Court for Human and People's Rights, it is suggested that the Protocol makes this court the supreme institution for the protection of peoples and human rights. In South Africa however, in terms of the country's constitution the Constitutional Court is the supreme court protecting basic human rights. What would be the consequences of deferring or referring matters to the African Court?
The African Court will make decisions based on the African Charter which may have become outdated in terms of human rights development since it was developed a few decades ago. The South African Constitution, being more recent is more in line with international best practice. Also, the equality clauses in the African Charter and the South African Constitution are different. The African Court will therefore function from a different legal basis. This may cause some tension. Mechanisms may be required to regulate issues that can be brought before the African Court.
It is noted however, that the jurisdiction of the African Court is between States. This would impact on the number of cases lodged. Issues such as how will the court be constituted and amendments to domestic judicial laws for the harmonisation of country and continental laws would need to be addressed.

Some of the key legal considerations include the following:

The Central Organ
Ceding Sovereignty
The use of force in International Intervention
Enforcement Mechanisms
Gender

(b) Central Organ

It is envisaged that the Central Organ would be established through Article 9(1)(d). Since this represents such an important organ, it should be integrated into the Act as an organ established under Article 5 and not by the Assembly under Article 9. It is further noted that the intended focus area of the Central Organ is safety and security. However, in reality the focus of the Organ is much broader as it also includes other matters such as food security. Some general issues with regard to the Constitutive Act and the structures established by it need consideration, namely:

The relationship between the Central Organ and the Assembly of the AU should be redefined, particularly as it appears that the central organ has already been created and has a life of its own.
It is strongly recommended that the central organ should be constituted within the principle Treaty.
There is a lack of clarity and some contradictions in the Act. There is also an overlap in authority between various bodies created by the Act. For example, it is not clear which of the structures envisaged would have jurisdiction over what matters.

(c) Ceding Sovereignty and Human Rights


South Africa should discuss the principles and terms of ceding its sovereignty in such a way that it does not impact negatively on the existing human rights of its citizens. There was general support for a phased and strategic approach.
There are concerns about the Constitutionality of ceding sovereignty in regard to policy matters, as provided for in the Act. This will have to be assessed in due course. The issue of quorums in respect of decisions relating to the adoption of policies was raised. There was general support for the proposal that there should at the very least be a more stringent quorum for policy decisions binding on all member states.


While South Africa has extended the right to class actions to organs of civil society in the interest of the public, many countries do not cater for class actions by individuals. Thus, if the Constitutive Act provides for class actions, many countries would have to pass domestic laws to comply with their obligations in terms of this Act. Inter-alia, concerns were raised about the possibility of foreign NGO's funding actions in different member states in furtherance of non-Africa agendas.
With regard to the Charter on Peoples' and Human Rights, it is noted that there have been many developments in the arena of International Human Rights law, since the adoption of the Charter in 1987. It is recommended that South Africa should initiate consultations on the possibility of reviewing the provisions of the Charter before it can be incorporated into the Act.

(d) The Use of Force in International Intervention

Whilst the need for intervention as envisaged by the Act is acknowledged, it must be ensured that any form of intervention occurs within the confines of public international law.
South African negotiators should be provided with a list of this country's international obligations to ensure that the AU does not adopt any provisions that will contradict or impact negatively on the country's existing international obligations. An audit of our relevant international obligations is envisaged.

(e) Enforcement Mechanisms

Whilst the Act provides for the establishment of various enforcement mechanisms, it does not set any time frames. Unless time frames are included, the Act will be ineffective, and the AU will be undermined.

(f) Gender

The issue of gender sensitivity within the Act and the lack of gender sensitive language in the relevant Articles of the Act have noted and there is general support for a revision at some level.

3. Economic Considerations

(a) Introduction

African economic performance has weakened over the last 20 years and has never recovered since the 1970s. The Human Development Index of most countries is also very low. The AU is therefore a response to these problems and is expected to lead to economic regeneration of Africa. It will also allow Africa to compete globally and provide her with means to improve the standard of living of her people. Regional integration can contribute to addressing these challenges but must have a firm developmental focus. Development integration implies combining efforts to promote trade integration with sectoral cooperation in key infrastructural and productive sectors and giving this priority.
The AU envisages accelerating efforts to promote economic integration in Africa. This raises the central question of what strategy to pursue to promote economic integration. The literature defines a number of models. First, there is the conventional trade integration approach, which focuses on removal of tariff and regulatory barriers and moving from FTA to Customs Union, common market and economic union. This approach has been criticised as inappropriate to developing countries and regions where major trade barriers often derive from underdeveloped production structures and inadequate infrastructure.
There is a need for a clear development integration approach, which is not solely focused on conventional trade integration. A development integration approach implies emphasising sectoral cooperation and coordination to address developmental backlogs as the basis for promoting effective trade integration. It also emphasises political cooperation at an earlier stage than in conventional trade integration programmes. There is a tension both in existing sub-regional programmes and in AU document between these two paradigMs

Economic integration, infrastructural development and sectoral
Cooperation

There is a need for a developmental approach to promoting economic integration in Africa. The case for this arises from the reality that many of the major barriers to promoting intra-regional trade arise not from tariff and regulatory barriers but underdeveloped production structures and inadequate infrastructure.
The integration strategy needs to build on what is already in existence in sub-regions and should strive to improve sectoral cooperation as well as capacity building.
However, developments such as the forthcoming Cotonou Economic Partnership negotiations will underscore the need to develop strategies for trade relations between sub-regions: options include a continental FTA or preferential agreements between sub-regions.
It is suggested that infrastructural development should be a first priority and that NEPAD has mapped out a good programme in this regard. This must emphasise conventional infrastructural issues like transport and telecommunications as well as information technology. Sectoral co-operation that will promote programmes for development of certain sector priorities must also be seen as a priority
African countries have similar trade patterns based on exports of primary products to the north. Intra-African trade is very limited. The European Union envisages reciprocal trade agreements between African regions and Northern trading blocs. These could lead to a situation where South Africa finds itself trading with African countries outside the SADC region on worse terms than e.g. the European Union. Hence, integration in Africa is not happening in a vacuum, there are developments at global level that are re-shaping the terrain.
It is also important to define the kind of economic partnership with the outside world that will benefit Africa. The question of how to engage institutions like the G7 in order to reap the benefits of globalisation also needs to be addressed. There is therefore a necessity to think strategically in order to face the challenge of globalisation.
The development integration approach is most appropriate for Africa. This implies cooperating to address barriers arising from underdevelopment and promoting political co-operation at an early stage. Premature moves

to "high" levels of trade integration e.g. a continent wide customs union will not necessarily contribute to addressing key challenges.
The integration strategy must build on sub-regional initiatives already in existence and improve sectoral co-operation as well as capacity building.
There will, however, be a need to build links across sub-regions: options include preferential arrangements between sub-regions and continent wide FTA.

© Monetary Union and Central Bank

While continent-wide monetary union is a legitimate long-term objective, this should not be seen as feasible in the short term.
There must be co-operation with existing monetary union arrangements, such as that in West Africa and the common monetary area between South Africa, Lesotho, Swaziland and Namibia.
The establishment of an African Central Bank should not attempt to prematurely promote monetary union. A focus on promoting cooperation between central banks along the lines of the Finance and Investment Sector Coordinating Unit of SADC could be a model for early activity.

General

The terms of reference regarding the Economic, Social and Cultural Council (ECOSOC) in the African Union, its interrelationship to subregional bodies and the specialised technical committees needs to be spelt out.

4. Pan African Parliament

The establishment of the Pan African Parliament must be considered in relation to the ratification of the Protocol on the Pan African Parliament. The concern which arises stems from the fact that the Pan African Parliament is referred to in both the Abuja Treaty and the Constitutive Act of the African Union. The question that must be dealt with is, which founding document would be used as the basis for ratifying the Protocol?
Parliament should request the Minister of Foreign Affairs to table the Protocol on the Pan African Parliament once it has been signed, so that it can be ratified.
Parliament should also request the SADC Parliamentary Forum to expedite the ratification of the Protocol.